This is a collaboration of many documents with the intent to merge multiple services into a single contract. Hosting services, hosting management and upkeep, and optional out of scope development work.
369 Montezuma Ave, #491
Santa Fe, NM 87501
Managed Wordpress Hosting with Provisions for Additional Services
15th July 2016
This Agreement ("Agreement") is made as of [DATE], by [PROVIDER] located at [PROVIDER ADDRESS], and [CLIENT] ("Client"), located at [CLIENT ADDRESS].
The purpose of this Agreement (hereafter referred to as the “Agreement”) is to precede a longer-term contract arrangement under which Company will provide Web Hosting services on behalf of Client.
I will always do my best to fulfill your needs and meet your goals, but sometimes it is best to have a few simple things written down so that we both know what is what, who should do what and what happens if things go wrong. In this contract you won't find complicated legal terms or large passages of unreadable text. I have no desire to trick you into signing something that you might later regret. I do want what's best the safety of both parties, now and in the future.
What do both parties agree to do?
As my customer, you have the power and ability to enter into this contract on behalf of you or your company or organization. You agree to provide me with everything that I need to complete the project including text, images and other information as and when I need it, and in the format that I ask for. You agree to review my work, and to provide feedback and sign-off approval in a timely manner. Deadlines work two ways and you will also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this contract.
I have the experience and ability to perform the services you need and I will carry them out in a professional and timely manner. Along the way I will endeavor to meet all the deadlines set, but I can't be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off my work on-time at any stage. On top of this I will also maintain the confidentiality of any information that you give me.
1. Scope of Work
Client is contracting [PROVIDER] to provide website maintenance, technical support, and hosting services for [WEB URL]. [PROVIDER] agrees to provide such services to the Client on an ongoing basis defined in the Terms - Length of Service. Services not considered “standard website maintenance, technical support, or hosting” are subject to be charged at a separate rate and will not be considered part of this agreement.
a. What IS included in this Agreement
Ongoing web hosting services, and up to [QUARTERLY INCLUDED HOURS] hours of standard website maintenance and technical support for [WEB URL] every three months, which includes:
- Weekly updates of the Clients CMS (Wordpess, including any third-party plugins) to make sure it is operating on the latest versions and is secure
- Daily backups of your website and database files so that it may be fully restored in case of loss.
- Integrated Comprehensive Security - Sucuri live monitoring and free threat removal - Included (integrated platform)
- Limited login attempts & Intelligent IP blocking
- Uptime monitoring to make sure the site is actually online and available to use- Included (integrated platform)
- High end page caching- Included (no plugins required)
- Dedicated staging sites and blueprints for rapid development
- Content management updates and formatting of content to make sure the look and feel of the site is consistent with your brand style guide and aesthetic -site optimization to maintain best practices
- We'll communicate with your hosting provider if there are any issues
- 24/7 Emergency Email Support, Chat or Phone support Mon-Fri 9am - 7pm CST
- Monthly report that includes speed, security, performance, and updated information
- Site Consultations and Recommendations
- The addition of new features or changes to existing features on the website. If the time required to complete these changes exceeds the time allotted in the agreement, additional hours will be billed separately (See Additional Services).
- If any regular maintenance or software update procedure requires additional time to complete beyond the scope of this agreement, [PROVIDER] will notify the Client in advance and any additional time will be billed separately. Support hours expire at the end of the quarter and do not roll over to the next maintenance quarter.
b. What is NOT included in this Agreement
- Maintenance, support, or hosting services for websites other than [WEB URL].
- Domain name registration, DNS service, or email services.
- Web site redesign, re-alignment or re-development equalling more than 50% change to web page, web site, web graphics on the website (i.e. 4 graphics on website, and you want 3 changed, there is a charge for anything above 2, meaning 50%)
- CMS design or integration including but not limited to blogs, shopping carts and web forums. These require a separate design agreement.
- Search Engine Optimization (SEO)
We have a good idea of how to get your site seen and read by google and we include the basic optimizations that Google scans your your code and your content for. You may provide us with a list of keywords to target and we will place them where they need to be placed. You may, however, hire us to research and implement those keywords for you in your site for $85.00/hr SEO Fee.
We cannot guarantee that our optimizations will get you the #1 spot in Google results and if we're redesigning your site, we cannot guarantee you will have the same ranking after the new site has been published. Google does what Google wants but we do our best to follow their rules and generally our changes improve our clients visibility.
Subject to the terms and conditions of this Agreement, [PROVIDER] will provide Web Hosting services for [CLIENT], subject to the following terms:
1. Length of Service.
Client agrees to an initial twelve (12) months contractual term of service (“Term”).
2. Service Start Date.
The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon [PROVIDER]s' receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.
3. Renewal by Client.
This Agreement will automatically renew for successive twelve (12) month Terms unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to Client’s account.
a. Payment Schedule
Client agrees to pay Elevate Studios a total of $500.00 annualy in exchange for the above services. The first payment is due upon execution of this Agreement. Subsequent payments will be due every twelve (12) months thereafter.
3.2 Expenses. Client shall pay Developer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Developer’s standard markup of 30%, and, if applicable, a mileage reimbursement at $Cost Per Mile per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Developer with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Developer’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within 30 days of receipt. A monthly service charge of 3.5% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Developer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes. Unpaid balances running over 30 days may be removed from the public accessibility via the Internet. If the payment is not received within 60 days, the website may be removed from our servers permanently and will not be recoverable.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Developer’s standard hourly rate of Developer's Hourly Rate per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Developer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Developer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Developer.
4.3 Timing. Developer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Developer. The Developer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Developer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Developer’s obligations under this Agreement.
4.4 Testing and Acceptance. Developer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Developer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Developer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
4.5 Increase in Fees. Host expressly reserves the right to change the fees charged hereunder for the Hosting Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Hosting Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that Host is authorized to charge the payment method provided by Client for any new Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
5. Deadlines & Deliverables
Elevate Studios will respond via email to all maintenance requests from Client within 24 hours on weekdays with a confirmation that the request was received as well as an estimated completion date. Maintenance requests received after 5:00 pm PST on weekdays may not be completed until the next business day unless prior arrangements have been made.
Elevate Studios will make all reasonable efforts to adhere to all quoted deadlines for the deliverables in the Client’s maintenance requests. In the event that Elevate Studios has any issues in delivering on a quoted deadline, Client will be notified via email the reasoning for any change.
WEBSITE BUILDING MATERIALS
Client Resources: The Client will submit all content to the designer, including, but not limited to: written materials, photographs, previous designs, sprites (functional design elements), and logos within a reasonable amount of time. Website will be designed using the design platform deemed a best fit for the site, allowing the Developer to have full control of website code.
6. Client Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Developer;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
Client hereby authorizes Elevate Studios to access their web hosting account, providing active user name / password combinations for access to the server via FTP, assuring that 'write permissions' are in place on said hosting provider.
Client Resources: The Client will submit all content to the designer, including, but not limited to: written materials, photographs, previous designs, sprites (functional design elements), and logos within a reasonable amount of time. Website will be designed using the design platform deemed a best fit for the site, allowing the Developer to have full control of website code.
During the duration of this contract, the Client agrees that Elevate Studios will be the sole provider of maintenance services for the website, and no other party will have access to or rights to change the website. If a party other than Elevate Studios makes changes to the website, any errors that are created must be repaired and will be charged for at $75.00 per hour.
7. Additional Services
Any revisions, additions, or redesign the Client requests Elevate Studios to perform that is not specified in this document shall be considered "additional" and will require a separate agreement and payment. Elevate Studios shall advise Client on any requested work that falls within these bounds.
ACCREDITATION AND PROMOTION
Accreditation: Developer shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Developer in the Deliverables on each page of the Final Deliverables.
Promotion: Developer retains the right to reproduce, publish and display the Deliverables in Developer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s "Confidential Information" includes information that Developer should reasonably believe to be confidential. Developer's "Confidential Information" includes the source code of any Developer Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement.
Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
8. Relationship of the Parties
8.1 Independent Contractor. Developer is an independent contractor, not an employee of Client or any company affiliated with Client. Developer shall provide the Services under the general direction of Client, but Developer shall determine, in Developer’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Developer and the work product or Deliverables prepared by Developer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Developer Agents. Developer shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Developer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Developer, employee or Design Agent of Developer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Developer shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Developer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Developer, and Developer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Developer.
9. Warranties and Representations
9.1 By Client. Client represents, warrants and covenants to Developer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Developer
(a) Developer hereby represents, warrants and covenants to Client that Developer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Developer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Developer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Developer, Developer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Developer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Developer’s knowledge, the Final Art provided by Developer and Developer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Developer shall be void.
(c) Except for the express representations and warranties stated in this agreement, designer makes no warranties whatsoever, designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. Client agrees to indemnify, save and hold harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Developer shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) Developer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Developer in providing such assistance.
10.2 By Developer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Developer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Developer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies Developer in writing of the claim;
(b) Developer shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Developer with the assistance, information and authority necessary to perform Developer’s obligations under this section. Notwithstanding the foregoing, Developer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Developer.
10.3 Limitation of Liability. The services and the work product of designer are sold "as is." In all circumstances, the maximum liability of designer, its directors, officers, employees, design agents and affiliates ("Developer Parties"), to client for damages for any and all causes whatsoever, and client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by designer, even if designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. Term and Termination
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Developer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Developer or Developer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Developer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
11.6 Unsolicited Email & Spamming: Flywheel/Elevate Studios does provide SMTP throughput, so policy regarding spam and unsolicited commercial advertisements apply.
(a) Unsolicited commercial advertisements (SPAM) are not allowed in e-mail, and will likely result in account cancelation. Flywheel/Elevate Studios takes a zero-tolerance approach to SPAM originating from its servers or for spam advertising of domains hosted within our network. If found, the Client is subject to fees up to $25 per unsolicited email message sent. The following activities are not allowed: SPAM, which includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts (such messages may only be sent to those who have explicitly requested it from your domain); Forging, altering or removing electronic mail headers – any domain sending stealth spam will be terminated without warning and without refund.
(b) Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account (mail bombing); Spamming Newsgroups: Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account cancelation. See the newsgroup or mailing lists charter for whether advertising is allowed or not. Sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such; Mail may not be used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, the Client must not send that person any further messages.
(c) If the Client uses the services of another provider to promote a website hosted by or through Flywheel/Elevate Studios(spamvertising), then the provisions of the above policy shall apply as if the SPAM were sent through our servers.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Developer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. Developer shall not be deemed in breach of this Agreement if Developer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Developer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Developer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Developer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Name of State without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Name of State. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Developer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Developer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Schedule A: Intellectual Property Provisions
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Developer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Developer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Developer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Developer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works. Developer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Developer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Developer.
1.4 Original Artwork. Developer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Developer within 30 days of completion of the Services.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Developer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Developer for use by Client as a Trademark. Developer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Developer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
1.6 Developer Tools. All Developer Tools are and shall remain the exclusive property of Developer. Developer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Developer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Developer Tools comprising any software or technology of Developer.
2. RIGHTS TO FINAL ART
Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Developer hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Developer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
Schedule B: Interactive-specific Terms and Conditions
1. SUPPORT SERVICES
1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first Months covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, Developer shall provide up to Hours covered by Warranty hours of Support Services at no additional cost to Client. Additional time shall be billed at Developer’s regular hourly rate, then in effect upon the date of the request for additional support.
1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Developer will provide Support Services for the following Months covered by Maintenance months (the “Maintenance Period”) for a monthly fee of $Monthly Maintanance Fee OR Developer’s hourly fees of $ Developer's Hourly Rate per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.
During the Maintenance Period, Client may request that Developer develop enhancements to the Deliverables, and Developer shall exercise commercially reasonable efforts to prioritize Developer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Developer’s then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Developer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Developer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Developer’s sole liability for a breach of this Section is the obligation of Developer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Developer, Developers sole obligation shall be to substitute alternative Third Party Materials.
3.2 Developer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Developer represents and warrants that, to the best of Developer’s knowledge, the Developer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
4. COMPLIANCE WITH LAWS
Developer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
Signed by and on behalf of Tyler Snyder, Elevate Studios, LLC
Signed by and on behalf of Kate Kendall, Hipico Santa Fe
*Both parts must sign above and keep a copy for their own records.